Lana v. Assimakopoulos-Panuthos (In re Estate of Assimakopoulos)

• Decision Date: 20 October 2017
• Docket Number: Case No. 2D15–4205
• Citation: 228 So.3d 709
• Parties: IN RE ESTATE OF Paula X. ASSIMAKOPOULOS, deceased; and In re Trust Administration of the Paula X. Assimakopoulos Trust U/T/A 4/15/2008. Eva Lana, Appellant, v. Nicolle Assimakopoulos–Panuthos, individually and as personal representative of the estate and as cotrustee of the trust; Gary M., Fernald, as curator of the estate; Alexander P. Alexander; and Plato J. Alexander, Appellees.
• Court: Florida District Court of Appeals

228 So.3d 709

IN RE ESTATE OF Paula X. ASSIMAKOPOULOS, deceased; and In re Trust Administration of the Paula X. Assimakopoulos Trust U/T/A 4/15/2008.Eva Lana, Appellant,

v.Nicolle Assimakopoulos–Panuthos, individually and as personal representative of the estate and as cotrustee of the trust; Gary M., Fernald, as curator of the estate; Alexander P. Alexander; and Plato J. Alexander, Appellees.

Case No. 2D15–4205

District Court of Appeal of Florida, Second District.

October 20, 2017

Dineen Pashoukos Wasylik of DPW Legal, Tampa, for Appellant.

George J. Felos of Felos & Felos, Dunedin, for Appellees Alexander P. Alexander and Plato J. Alexander.

Jeffrey A. Eisel and Hamden H. Baskin, III, of Baskin Fleece, Clearwater, for Appellee Nicolle Assimakopoulos–Panuthos.

No appearance for Gary M. Fernald.

BY ORDER OF THE COURT:

The "Motion for Rehearing or in the alternative Motion for Clarification" filed by Appellees Alexander P. Alexander and Plato J. Alexander is denied in all respects. The "Motion for Clarification and/or Rehearing and for Written Opinion and Certification" filed by Appellant Eva Lana is granted to the extent that the prior opinion dated June 23, 2017, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing will be entertained.

VILLANTI, Judge.

In this probate proceeding, Eva Lana appeals the probate court's order awarding sanctions against her pursuant to section 57.105, Florida Statutes (2015), and two other judgments against her awarding expert witness fees to another party's attorney and to the curator of the estate. While Lana challenges the sanctions judgment on numerous grounds, we find merit only in her contention that judgment improperly includes an award of expert witness fees. We also find merit in her contention that the expert witness fees awarded to the personal representative's attorney, Hamden Baskin, and to the court-appointed curator of the estate, Gary Fernald, were awarded in violation of due process. We therefore reverse the sanctions judgment in part and the judgments in favor of Baskin and Fernald in total. In all other respects, we affirm.

Facts

While a recitation of the long, contentious, and convoluted history of this case is unnecessary to our resolution of this case, some background is necessary to understand our ruling. The death of Paula X. Assimakopoulos ignited numerous disputes between her two daughters, Lana and Nicolle Assimakopoulos–Panuthos, and their uncle and cousin, Alexander P. Alexander and Plato J. Alexander. The first dispute centered on where Assimakopoulos's estate would be probated. Ultimately, after some not insignificant wrangling, Lana agreed that the Florida courts had jurisdiction to probate the estate. Probate was opened in Pinellas County, Lana and Panuthos were appointed as co-personal representatives, and probate proceedings began. Later, after proceedings became bogged down due to disagreements between the co-personal representatives, Lana was removed as a co-personal representative, although she remained active in the case as a beneficiary.

As the family disputes continued three years after the estate was opened, Lana filed a petition to revoke probate, alleging that the documents initially used to establish Assimakopoulos's domicile in Florida were incomplete and falsely presented and that a full review of all of her documents and affairs would show that probate jurisdiction was properly in New York rather than Florida. In response to this petition, the Alexanders and Panuthos filed motions to dismiss, which were granted after an evidentiary hearing. Hence, the petition to revoke probate was denied.

Lana initially appealed the probate court's order denying her petition; however, shortly after the notice of appeal was filed in this court, Lana filed a motion asking this court to relinquish jurisdiction so that the probate court could entertain a motion to vacate the denial of the petition under Florida Rule of Civil Procedure 1.540. This court granted that motion and relinquished jurisdiction. Lana then filed her rule 1.540 motion, and the probate court held an evidentiary hearing on it. At the conclusion of the hearing, the probate court denied the motion.

Shortly thereafter, the Alexanders filed a motion for sanctions in the probate court under section 57.105(1) based on Lana's filing of the above rule 1.540 motion, which they asserted was not supported by either the facts or the law, and they noticed their motion for hearing. In preparation for the hearing on this motion, Lana subpoenaed Baskin as the attorney for the personal representative, Fernald as the court-appointed curator of the estate, and her own former attorneys. In response to Lana's subpoena, Baskin filed a notice of intent to seek an expert witness fee, to which Lana objected. Baskin did not file a motion actually seeking a fee, and his "notice" was not set for hearing.

Despite having subpoenaed witnesses for the hearing on the Alexanders' sanctions motion, Lana did not appear for that hearing. However, since the hearing had been properly noticed, the probate court went forward, first taking testimony from George Felos, who was counsel for the Alexanders. The Alexanders also presented the testimony of expert fee witness Deborah Bushnell. When the Alexanders finished their presentation, the court asked Baskin whether he wanted to be heard. At that point, Baskin argued that he was entitled to an expert witness fee for his appearance that day, contending that the "only way" that he could have been subpoenaed was to present expert testimony on fees. The probate court then asked Fernald whether he had anything to add. Fernald then made an ore tenus "me too" motion for an award of an expert witness fee. The probate court subsequently granted the Alexanders' motion for sanctions, entered a sanctions judgment in their favor, and included an expert witness fee for Bushnell in that judgment. The probate court also entered separate judgments in favor of Baskin and Fernald for expert witness fees. Lana has appealed each of these judgments.¹

Award of Expert Witness Fees to the Alexanders

Lana argues first that the probate court's decision to include an expert witness fee for Bushnell in the sanctions judgment was improper because the plain language of section 57.105(1) does not authorize such an award. We agree.

Section 57.105(1) provides as follows:

Upon the court's initiative or motion of any party, the court shall award a reasonable attorney's fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:

(a) Was not supported by the material facts necessary to establish the claim or defense; or(b) Would not be supported by the application of then-existing law to those material facts.

As is clear from the plain language of the statute, the sanction permitted is an award of attorney's fees only. Costs are not included. This is in contrast to the plain language of section 57.105(2), which provides for a sanction of "damages," measured as the "reasonable expenses incurred in obtaining the order," when the court finds that an action taken by the opposing party was taken primarily for the purpose of unreasonable delay. Under subsection (2), costs could be included as part of damages; however, this language is absent from subsection (1), which provides only for an award of attorney's fees.

And indeed, several courts, including this one, have specifically held that an award of sanctions under section 57.105(1) may not include costs. See, e.g., Heldt–Pope v. Thibault, 198 So.3d 650, 652 (Fla. 2d DCA 2015) (affirming award of attorney's fees under section 57.105(1) but reversing the award of costs because " section 57.105(1) does not provide for the award of costs"); Siegel v. Rowe, 71 So.3d 205, 210 n.2, 214 (Fla. 2d DCA 2011) (reversing cost award under section 57.105(1) against attorneys as unauthorized but affirming it against the party under section 57.041(1)); Jackmore v. Estate of Jackmore, 145 So.3d 170, 170 (Fla. 1st DCA 2014) (reversing award of costs under section 57.105 because such an award "is not authorized"); Ferere v. Shure, 65 So.3d 1141, 1145 (Fla. 4th DCA 2011) (stating that an award of costs is not permitted under section 57.105(1) ); Santini v. Cleveland Clinic Fla., 65 So.3d 22, 36 (Fla. 4th DCA 2011) (same); Ferdie v. Isaacson, 8 So.3d 1246, 1251 (Fla. 4th DCA 2009) (same). Hence, to the extent that the sanctions judgment against Lana includes an award of costs, it was patently improper.

And, as Lana properly points out, expert witness fees are taxed as costs. Section 92.231(2), Florida Statutes (2015), provides, in pertinent part:

Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee including the cost of any exhibits used by such witness in an amount agreed to by the parties, and the same shall be taxed as costs.

(Emphasis added.) Further, the Florida Supreme Court has specifically held that "expert witness fees ... may be taxed as costs for a lawyer who testifies as an expert as to reasonable attorney's fees." Travieso v. Travieso, 474 So.2d 1184, 1186 (Fla. 1985) (second emphasis added). Hence, the fee charged by a lawyer to appear as an expert witness is considered a cost, not an attorney's fee, and it is awardable only when costs are properly awarded.

Here again, as noted above, section 57.105(1) provides only for an award of attorney's fees—not costs. Therefore, the sanctions judgment awarding attorney's fees and costs to the Alexanders must be reversed to the extent that it purports to award $2770² in expert witness fees to Bushnell because that award...